MAITHRIPALA

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
WICKREMASJNGHE, J.
DE SILVA, J.
CA/PHC/APN/10/2018
HC/74/2010
SEPTEMBER 21, 2018

Revision-Penal Code, section 3658(2)(b)-Minimum mandatory sentence-Per incuriam-Code of Criminal Procedure Act, No. 15 of 1979, as amended, section 303-Custodial sentence-Suspended sentence-Varying of the sentence by the succeeding judge

The accused was indicted for two offences committed under section 365B(2)(b) of the Penal Code, as amended, and pleaded guilty. For the first offence, the High Court imposed a sentence of 24 months imprisonment suspended for 10 years, a fine and compensation. A similar sentence was passed in respect of the second offence. The jail sentences were to run concurrently. The accused did not pay compensation and evaded court. When he was arrested and brought before the court he informed court that he was unable to pay the compensation. The succeeding High Court Judge imposed sentences of seven years rigorous imprisonment on each count to run consecutively, and compensation. The accused preferred a revision application to the Court of Appeal.

Held:

1. Section 365B(2)(b) of the Penal Code carries a mandatory minimum sentence of seven years. However, a sentence less than the mandatory minimum sentence can be imposed depending on the circumstances of the case.

2. The nature and the gravity of the offence have to be considered before ordering a suspended sentence. In assessing the punishment that should be passed on an offender, the Judge should consider the sentence both from the point of view of the public and the offender.

3. Considering the gravity of the offence and the physical and mental damage caused to the child, payment of compensation alone will not be sufficient. On the facts and circumstances of this case, the High Court should have imposed a custodial sentence.

4. The court has very limited power to vary its own judgments. The succeeding High Court Judge was not empowered to set aside the judgment delivered by his predecessor.

Cases referred to:

1. State v. Sunanda Kumara and another SC Reference No. 03/2008- HC Anuradhapura 334/2004
2. Ambagala Mudiyanselage Samantha Sampath v. Attorney General (SC/APPEAL/17/2013, SC Minutes of 12.03.2015)
3. Hirimuthugoda Sanjeewa, Shantha alias Ran Mama v. Attorney General (CA/150/2010)
4. Attorney General v. Mayagodage Sanath Dharmadiri Perera (CA/ PHC/ APN/147/2012)
5. Attorney General v. Jinak Sri Uluwaduge and another [1995] 1 Sri LR 157
6. Attorney General v. H.N. de Silva 57 NLR 121
7. Hettiarachchi v. Seneviratne, Deputy Bribery Commissioner and others (No.02) [1994] 3 Sri LR 293
8. Jeyaraj Fernandopulle v. Premachandra De Silva and others [1996] 1 Sri LR 70
9. Senarath v. Chandraratne, Commissioner of Excise and another [1995] 1 Sri LR 209
10. W.M.F.G. Fernando v. Rev. Sr. Marie Bernard and others (CA/1108/99 (F))
11. Mariam Beebee v. Seyed Mohamed 68 NLR 36
12. Bank of Ceylon v. Kaleel and others [2004] 1 Sri LR 284

APPEAL from the Judgment of the High Court of Kandy.

Chathura Amaratunga with Chulari Hettiarachchi for the Accused Petitioner.

Jayalakshi De Silva, S.C., for the Complainant-Respondent.

cur. adv. vult.

January 10, 2019

WICKREMASINGHE, J.

The accused-petitioner has filed this revision application seeking to set aside the order of the Learned High Court Judge of Gampaha dated 26.10.2016 and seeking to impose the default sentence in the judgment dated 23.03.2016 under case No. HC 74/2010.

Facts of the Case:

The accused-petitioner (hereinafter referred to as the 'petitioner') was indicted in the High Court of Gampaha as follows;

1) The accused committed Grave Sexual Abuse, by oral penetration, on a boy who was under 16 years of age and thereby committed an offence punishable under section 365B(2)(b) of the Penal Code (as amended).

2) The accused committed Grave Sexual Abuse, by anal penetration, on a boy